W and S
[2010] FCWA 66
•22 JUNE 2010
[2010] FCWA 66
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY COURT ACT 1997 |
| LOCATION | : | PERTH |
| CITATION | : | W and S [2010] FCWA 66 |
| CORAM | : | THACKRAY CJ |
| HEARD | : | 7, 8 AND 9 SEPTEMBER 2009; 15 AND 16 OCTOBER 2009, 26 FEBRUARY 2010, 26 MARCH 2010, 19 APRIL 2010, 22 JUNE 2010 |
| DELIVERED | : | 22 JUNE 2010 |
| FILE NO/S | : | PTW 4597 of 2006 |
| BETWEEN | : W |
AND
S
Catchwords:
CHILDREN – With whom a child lives – Best interests – Child at risk of harm from parents’
ongoing conflict – relocation to [the Eastern states] permitted
CHANGE OF CIRCUMSTANCES SINCE PREVIOUS JUDGMENT – Conclusions to be
drawn from medical examinations in relation to sexual abuse – Extensive use of day care –
Extent of mother’s drug use – Extent of mother’s association with former boyfriend who
potentially poses a risk to children
CHILD SUPPORT - Application to credit lump sum payment dismissed
CONTRAVENTION - Father had child's hair cut - mother had sole parental responsibility -
failure to return communication book - particulars of complaint not supported by evidence -
Application dismissed
Legislation:
Family Court Act 1997 (WA)
Family Law Act 1975 (Cth)
[2010] FCWA 66
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Self represented |
| Respondent | : | Self represented |
| Independent Children's Lawyer | : | Mrs M Stokes (& Mr R Hooper) |
Solicitors:
| Applicant | : | Self represented litigant |
| Respondent | : | Self represented litigant |
| Independent Children's Lawyer | : | Chris Stokes & Associates |
Case(s) referred to in judgment(s):
Nil
[2010] FCWA 66
1 [Mr W] and [Ms S] have been locked in dispute concerning their daughter,
[Fiona], for nearly four years. [Fiona] has not yet turned five. The Single Expert, who has prepared more than 500 family assessments, has rarely seen a similar level of animosity. According to him, “the situation is about as bitter as it comes”.
Background
2 At the heart of the dispute is the mother’s desire to return home to
[the Eastern states]. The father is implacably opposed to this. He believes [Fiona]
should live with him and claims she is at risk in the care of the mother.3 These issues were ventilated during a trial in 2007/08, following which
I delivered judgment in March 2008. I decided it was not appropriate to make final orders, but determined that [Fiona] should remain in Perth, at least for the time being, and spend the majority of her time with the mother.
4 The matter has been back before the Court many times since March 2008 to deal
with a variety of issues, some of which related to the mother’s involvement with [Mr I], a man whose own children have been placed in the care of the Department for Child Protection (“DCP”). The mother and father have also been involved in litigation in other courts relating to restraining orders and child support. In light of the prospect of never-ending litigation, I considered it would be in [Fiona’s] interests to conduct another full hearing to revisit issues previously resolved only on an “until further order” basis.
5 The matter was listed for a three day trial in September 2009. Prior to the
hearing the mother announced she had terminated her relationship with [Mr I]. He was nevertheless called as a witness, but caused havoc in the process (as I will describe shortly). The proceedings could not be completed in the time allotted and two further days were assigned in October 2009.
6 Between the September and October hearings [Mr I] left messages on the
mother’s answering machine in which he made appalling threats directed to both the mother and [Fiona]. As a result, the Independent Children’s Lawyer and the Single Expert persuaded the mother to allow [Fiona] to move to live temporarily with the father. The mother quickly had second thoughts and complained she had been railroaded. [Fiona] nevertheless remained with the father for two weeks prior to the resumption of the hearing in October 2009. In the meantime [Mr I] had made threats against the father as well, telling him that that he was outside his house and was going to kill him.
7 At the conclusion of the hearing in October, I determined that [Fiona] should
return to live with the mother. This was contrary to the recommendation of the Independent Children’s Lawyer and made in the face of the father’s strong protestations. My view was that [Fiona] was no more at risk from [Mr I] in the care of the mother than she would be in the care of the father. If anything, she might be at greater risk with the father. Fortunately, more than six months later, [Fiona] has not come to any harm. In the meantime, the matter has again been before the Court on
[2010] FCWA 66
many occasions, mainly concerning issues relating to a trust fund for [Fiona], which
will be discussed later.8 These reasons need to be treated as supplementary to my principal judgment
delivered in March 2008 and other judgments given subsequently. Statements of fact in these reasons should be construed as findings. Where I indicate that findings have been made “on the balance of probabilities” my intention is to signal that other findings were clearly open, but that consideration of the probabilities and assessment of the credibility of witnesses on that particular issue led me to the conclusion reached.
Issues to be determined
9 The following are the principal issues (in the order in which I intend to discuss them, not in order of importance):
• the conclusions to be drawn from medical examinations undertaken in relation to possible sexual abuse of [Fiona]; • the extent to which [Fiona] has been left in day care and the reasons for the extensive use of day care by the mother; • the extent to which the mother has consumed drugs since the last hearing; • the mother’s relationship with [Mr I]; • the ongoing conflict between the parents. 10 Having discussed these issues I will consider the recommendations of the Single
Expert. I will then determine whether [Fiona’s] interests would be served by a shared care arrangement or by living primarily with one parent. If I determine that [Fiona’s] interests would be best served by living primarily with her mother I will then decide whether she should be permitted to relocate to [the Eastern states].
Orders sought by the father
11 The orders proposed by the father were contained in his Papers for the Judge
filed on 24 August 2009. He sought sole parental responsibility and that [Fiona] live with him. He also proposed that the mother spend time with [Fiona] from 9.00 am to 5.00 pm on Saturday and Sunday each fortnight, provided this was supervised by his mother or by a professional agency (at the mother’s expense).
12 At a meeting with a Family Consultant shortly before trial the father said he was
agreeable to the mother having unsupervised time with [Fiona] on one day each fortnight. He acknowledged he only made that offer because “his research of family law precedent [indicated] it was important that he be seen to be reasonable in supporting the child’s ability to spend significant time with the mother”.
13 The father did not provide any proposals for the time he would want to spend
with [Fiona] if she was permitted to relocate to [the Eastern states], even though he had been ordered to do so. He said he had not provided such proposals because he would “vigorously appeal” any decision allowing [Fiona] to relocate.
[2010] FCWA 66
Orders sought by the mother
14 The orders proposed by the mother were contained in a Minute filed on 24 July
2009. She sought sole parental responsibility and that [Fiona] live with her. She asked for permission to relocate with [Fiona] to [the country town] (where most of her family live) or to [the capital city] (where her sister and her family live).
15 In the event she was permitted to relocate, the mother proposed that the father
spend time with [Fiona] for one week during each of the school holidays and half of the Christmas holidays, but on the basis the father would remain in [the capital city]. The mother also proposed that the father have other time with [Fiona] as agreed, subject to two months’ notice. In the event she was not permitted to relocate, the mother proposed a continuation of the orders made after the last trial.
16 The mother proposed that all handovers take place inside a police station. She
sought injunctions designed to prevent the father from continuing to harass her and her employers. She also originally proposed the removal of the prohibition against [Mr I] coming into contact with [Fiona] and a “recommendation” for the discharge of the restraining order which the father had obtained in the Magistrates Court for the protection of [Fiona]. The mother abandoned the proposals relating to [Mr I] in light of developments around the September/October 2009 trial.
17 During the trial the mother clarified that if the relocation was not permitted she
proposed the continuation of the existing arrangements only until [Fiona] starts school. Thereafter, she proposed that the father spend time with [Fiona] from after school on Friday until the commencement of school on Monday each alternate weekend. In addition the father would spend time with [Fiona] during school holidays and on special occasions. She further indicated that if the Court proposed to allow one parent to spend only four nights out of fourteen with [Fiona], as was recommended by the Single Expert, such time should be spent in one block – regardless of who was providing the majority of the care.
The Independent Children Lawyer’s proposals
18 The orders sought by the Independent Children’s Lawyer were contained in
a Minute handed up at the conclusion of the October 2009 hearing. At that stage the Independent Children’s Lawyer was understandably concerned about the very recent threats made by [Mr I]. Her position was that the Court should not make final orders but should instead ensure [Fiona’s] immediate safety by having her remain with the father. She proposed that the mother have only supervised time with [Fiona]. The Independent Children’s Lawyer made clear that it was her desire for the mother to be given an opportunity to show that her relationship with [Mr I] was over and that she was putting [Fiona’s] interests before her own.
19 The Independent Children’s Lawyer proposed that matters be monitored in the
hope that it would be possible, after the expiration of some months, to move to an arrangement where the care of [Fiona] was shared between the parents. She indicated she did not necessarily favour the recommendation of the Single Expert that [Fiona] should spend 10 days with one parent and then four days with the other parent. She suggested an eight day/six day shared care arrangement might be appropriate.
[2010] FCWA 66
20 The Independent Children’s Lawyer said she would not, at present, support the
mother’s relocation proposal. She submitted this would be “just transferring the problems to another State for someone else to deal with”. It was her view that [Fiona] should spend “meaningful time” with both parents and with the father’s de facto wife.
The evidence relied upon
21 The father relied upon his affidavit sworn on 14 July 2009 and that of his de
facto wife, [Ms G], sworn on 17 July 2009. He also relied upon the affidavits of [RC], [PS], [PM], [SH] and his mother, [Mrs C]. Only the father, [Ms G] and the paternal grandmother were required for cross-examination.
22 The mother relied upon her affidavit sworn 17 July 2009 (as well as on an
affidavit sworn in support of a contravention application, which I will discuss later). She also relied upon an affidavit of [Mr I] and the affidavits of her neighbours, [Mr and Mrs B]. These witnesses were all cross-examined. The mother also intended to rely on an affidavit of her former employer, [Ms T]; however, it proved impossible for [Ms T] to be called at a convenient time. The maternal grandmother, [Mrs SS], gave oral evidence, although she had not filed an affidavit in this round of proceedings.
23 The Independent Children’s Lawyer did not call any witnesses, other than the
Single Expert, [Dr W], who provided a report and was cross-examined. It was also agreed that all documents produced pursuant to subpoena would be introduced into evidence.
Credibility
24 There are no whole truths; all truths are half truths. It is trying to treat them as
whole truths that plays the devil (Alfred North Whitehead). Given the lack of credibility of the key witnesses, the absence of legal representation and the tortuous course of the proceedings, I accept that my findings will not come near “the whole truth”. Nevertheless, I set out below my observations on the credibility of each of the witnesses.
The father
25 In my judgment following the 2007/08 trial I found the father to be an “unreliable witness”. I went on to say he:
gave every impression of making up much of his evidence as he went along. He was particularly prone to hyperbole and self-righteous justification of his own conduct. He gave every appearance of concealing the true nature of his interest in the various mining companies in which he has had involvement. He has a number of convictions for criminal offences spread over a long period of time, including 17 offences of stealing as a servant in 1990…
[2010] FCWA 66
26 Since then, I have had the father appear before me on numerous occasions.
I now regard him as having almost no credibility. I would not accept his evidence on any contentious issue unless it were firmly corroborated. In particular, I found his evidence concerning [Fiona’s] trust fund to be little more than “smoke and mirrors”. He remains the master of hyperbole. He appears to relish litigation; takes pleasure in confrontation; and derives satisfaction from his efforts to irritate me.
27 In my last judgment I also said this about the father’s business activities:
62. [The father] attempted to portray himself at the trial in July 2007 as a mining entrepreneur with a busy daily schedule of important meetings (which could nevertheless be put off every second week to allow him to care for [Fiona]). He claimed that his interest in the companies was purely in a management capacity and he did not own whatever assets they might have possessed (although it is noted many of them bore his uncommon middle name). All important decisions concerning the companies were said to be made by partners of one of the major accountancy firms. Similarly, he was at the mercy of the Trustee who made determinations about the disbursement of funds from a Family Trust into which it seems he had diverted a substantial sum of money. Nevertheless, according to [the father], it was absolutely vital that he remain in Perth, since any move to [the Eastern states] would “absolutely destroy my business” and would “devastate my business”. 63. [The father] was most disparaging about [the Eastern states] as an economically backward state and insisted that the only place he could make a living was Western Australia because of its mineral boom and his vast experience in the mining industry. Whilst I accept there is some validity in [the father’s] claims concerning the opportunities in the mining industry here, his evidence suggests he has not shared in the benefits of the boom. He has no (declared) assets and no (declared) income. He gets by borrowing from family and friends. They appear to have been exceedingly generous, for example advancing him about $30,000 to cover legal costs since July 2007. Some of the funds came from unidentified “overseas friends”…
28 The father’s portrayal of himself as a busy entrepreneur did not sit comfortably with the evidence given by his de facto wife (who started “dating” him in August 2007 and with whom he commenced living in December 2007). She said in the recent trial that she had never known the father to attend a business meeting.
29 The father’s evidence concerning payment of child support for [Fiona]
conflicted with the evidence given by his mother. His mother said that he had asked her for funds to pay the very modest support he was required to pay for [Fiona], but that she had refused his request (notwithstanding she was in control of a trust fund for [Fiona] which was said to be worth millions of dollars). The father’s evidence, namely that he had not even asked her for the money, seemed to be more plausible.
[2010] FCWA 66
The mother
30 In my judgment of March 2008 I said that the mother had initially presented as a slightly more credible witness than the father. However, I went on to say that:
evidence emerged after the hearing in July 2007 which led to [the mother] having no alternative than to concede she had grievously misled me about the nature of her association with [Mr I]. Her efforts to make her deception appear less barefaced were entirely unconvincing. [The mother’s] dishonesty was such that I lost whatever faith I had in her as a witness of truth.
31 The mother has appeared before me on many occasions since the last trial. She
has shown herself to be calm and thoughtful, albeit on occasions exasperated by the father’s histrionics and worn-down by the litigation. She has, however, previously shown a capacity to lie under oath. Nothing she has been able to say since the last trial has convinced me that she should now be accepted as a witness of truth. This is unfortunate since, were it not for her previous deception, I would have been inclined to believe her evidence contained significant elements of truth. Although her past unreliability means it would be desirable to have corroboration before accepting her evidence, her descriptions of the father’s behaviour were so reminiscent of his presentation in Court that they had “the ring of truth”. I have largely accepted what she said in relation to those matters, part of which was corroborated by other witnesses.
The paternal grandmother
32 The Independent Children’s Lawyer has been represented by Mr Hooper of
counsel at hearings after the substantive trial in October 2009. His description of the paternal grandmother at a recent hearing was most apt. He spoke of her as “the puppet” and the father as “the puppeteer”.
33 I find that much of grandmother’s evidence relating to issues associated with
[Fiona’s] trust fund (including her dealings with the London solicitors) was contrived. I am satisfied she was usually doing her best to recollect what her son had told her to say (or what she thought he might want her to say when she found herself without a script). Repeated opportunities given to the father and his mother during the trial to provide documents establishing the extent of the funds available for [Fiona’s] benefit were not taken up. Further significant efforts to obtain documents after the trial proved equally unsuccessful. Sadly, due to inclement weather, it seems the documents might now never come to light. In a letter to the Court dated 16 April 2009 (Exhibit 1 in the hearing on 19 April 2010) the grandmother advised that when she returned home from hospital on 25 March 2010:
…I discovered that as a result of the significant storm on 22nd March 2010 there was property damage to the premises. I advise my business room which holds all my personal documents, items of furniture and the documents and information as provided for in the subpoena issued 19th
February 2010 have been completely storm damaged and disregarded. [sic]
[2010] FCWA 66
34 When it became apparent during the trial that I would not receive reliable
information about the trust from the father or the grandmother, I suggested that the grandmother provide an authority to the Independent Children’s Lawyer to allow her to make enquiries direct of the major London law firm said to have been responsible for managing the affairs of the trust. At the stage at which I made this suggestion, the grandmother had just left the witness box in her wheelchair. As soon as the suggestion was made, the father turned around to his mother and began to gesticulate so as to make clear she was not to comply with my request. The mother dutifully took her cue and refused to supply the authority. Indeed, she said she “resented” the proposal. The father’s explanation for his conduct, when challenged, was entirely unconvincing.
35 The extent of the assets held by the trust fund was potentially of importance for
reasons that will become apparent. I explained to the father and grandmother that I had insufficient information to assess the veracity of their claims that the trust was worth millions of dollars. The father disputed this, scornfully explaining that one of the few documents that had been produced would itself provide sufficient “collateral” for a loan from any bank for hundreds of thousands of dollars. In any event, I explained that whilst there were other means by which corroborating documentation could be provided, it seemed the simplest method was to have the Independent Children’s Lawyer contact the London solicitors. I informed the father and the grandmother that I would draw an adverse inference in the event the authority was not made available prior to the next hearing.
36 The authority was not provided. I will refrain from surmising why the father and
the grandmother failed to make documentation available to allow the Court to have independent evidence concerning matters relating to the trust. Issues associated with the trust are still before the Court (and will not be resolved by this judgment). I propose to say nothing further on this issue, save that it would be necessary for all relevant passages of the transcript over the entire hearing (including the 2007/08 trial) to be examined in order to understand fully the prevarication and inconsistency which characterised the evidence on this subject. In particular, regard should be paid to the gross inconsistency between the oral evidence of the father and the paternal grandmother and the content of the letter of the paternal grandmother to the Court dated 16 April 2010 (in which it was asserted that the trust had no assets and that the trustee company had been deregistered at the grandmother’s request on 5 February 2010).
The maternal grandmother
37 I also formed an adverse view of the credibility of the maternal grandmother,
[Mrs SS], who was unexpectedly called to give evidence following developments during the trial. In my view, she demonstrated a tendency to say whatever she thought might assist her daughter’s case. Her evidence concerning the identity of the local marijuana dealer was, in particular, less than convincing and was only elicited with exasperated urging by her daughter.
38 [Mrs SS] initially gave inaccurate testimony about the extent of her contact with
[Mr I] in the period between her arrival in Perth on 17 July 2009 and when she gave evidence in September 2009. She first said she was “pretty sure” she had not seen him in her most recent visit. When it was put to her that [Mr I] had said he had met her on
[2010] FCWA 66
a “couple of occasions and had other interchanges” in that period she said they had not had any interchange other than at Court. When asked if she had a discussion with him at a “local tavern or pub” she said she didn’t go to the pub. When asked whether she had seen him anywhere near a hotel she said she had not. When she was asked if [Mr I] had been to the mother’s home whilst she was staying there, even to collect some belongings, she said he had not – although she then volunteered that she thought the mother had taken some belongings to him on the first weekend she was in Perth.
39 At this point in the cross-examination, the maternal grandmother was excused.
During her absence the mother was recalled and confirmed that she and the maternal grandmother had taken belongings to [Mr I] when he had booked in at a motel (which I gather was attached to a local hotel) after the assault on him mentioned below. The maternal grandmother had had some interaction with [Mr I] in this process, although it was relatively brief.
40 When the maternal grandmother was recalled to the witness box, she
immediately corrected her evidence on this point, without first having been informed of the evidence given in her absence (although she may have surmised that her daughter could have given conflicting evidence). Whilst there is room for doubt about whether she had intentionally misled the Court in her earlier evidence I have concluded she probably did not. The maternal grandmother is not terribly quick- witted. The interaction between her and [Mr I] had occurred very early in her visit to Perth. She had truthfully volunteered that the mother had probably taken some belongings to [Mr I] (which was presumably the occasion when the grandmother drove the mother to the motel). The real issue for these proceedings was the extent to which, and the circumstances in which, the mother had been in contact with [Mr I]. Contact between [Mr I] and the maternal grandmother was of marginal relevance (unless it took place at the mother’s home, which the mother and grandmother both adamantly denied).
The father’s de facto wife
41 The father’s de facto wife, [Ms G], was in the witness box for such a short time
during the previous trial that it was not possible to gauge her credibility. On this occasion she again presented as the “intelligent, pleasant and level-headed person” I found her to be at the last hearing. Nevertheless, it is apparent that her views are very strongly aligned with those of the father. Thus, although I would consider it highly likely that in everyday life [Ms G] is an honest person, I felt her evidence was likely to have been influenced by her strong bias in favour of the father and her strongly adverse opinion of the mother and the maternal grandmother.
42 For example, she corroborated the father’s story that the late model
[European car] he drives (said to be owned by the trust and only to be used for the benefit of [Fiona]) was generally left at the home of the paternal grandmother. She said the reason for this was because the car was “somewhat safer” there, notwithstanding she then acknowledged that the car was not garaged in either home. I note also that in her affidavit [Ms G] said the mother would “yell” at her at handovers at the police station, whereas in her oral evidence she said only that she spoke “very loudly”. These are, of course, minor matters and my mentioning them demonstrates
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that her credibility has not been shown to be as suspect as that of many of the other
witnesses.43 The way in which I ultimately decided to treat [Ms G’s] evidence was to accept
that when she gave a detailed account she was probably making a genuine effort to recall something that had happened. However, those parts of her evidence that were vague were unhelpful and have been afforded little weight. One thing that is clear is that she is a moderating influence on the father and has some appreciation of the response his demeanour and behaviour can provoke in others. Thus I am satisfied that the behaviour of the father which she witnessed at handovers would have been likely to be less abusive than his behaviour on other occasions when she was not present.
The mother’s neighbours
44 [Mr and Mrs B] have strongly adverse views of the father. Although I regarded
them as generally reliable, their disdain for the father was palpable and, in my view, was highly likely to have affected their evidence. Both know [Mr I] fairly well because he previously spent a great deal of time at the mother’s home. They are sympathetically disposed towards him, which would tend to suggest he did not do anything to offend them. I gained the impression they are also very protective of the mother and [Fiona]. Their favourable disposition towards [Mr I] would tend to suggest that they were also unaware of any poor conduct on his behalf toward either the mother or [Fiona]. There were, however, some elements of their presentation which suggested their capacity to tolerate bad behaviour might be greater than that of others of a more delicate disposition.
[Fiona’s] General Practitioner
45 [Dr T] was previously [Fiona’s] doctor. She gave her evidence by telephone. It
is clear she has formed an adverse view of the father, who she said had “falsely accused” her of child abuse after he learned she had examined [Fiona] for signs of sexual molestation. She was particularly concerned that the father had reported her to the Medical Board and to DCP. She now refuses to see [Fiona] because of the father’s complaints.
46 Notwithstanding [Dr T’s] negative view of the father, I am satisfied she gave
truthful evidence. In any event, the issue on which her credibility particularly mattered related to her evidence that the mother had suggested that [Fiona] had been sexually abused by the father. The mother did not accept she had made such suggestions, claiming instead she had merely taken [Fiona] to see [Dr T] for advice about symptoms she had observed when [Fiona] returned from the father. I accept that [Dr T] gave honest evidence of her recollection of these consultations, although it was apparent she was largely relying on her notes. This is understandable, given she works in a busy general practice and was being asked about consultations that took place long ago.
The DCP worker
47 [Ms B] is a senior DCP field officer. Her involvement arose out of the contact
she has had with [Mr I]. There was no reason to doubt [Ms B’s] veracity; however,
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she too has been in conflict with the father, who she felt had attempted to “bully” her
into retracting views she had expressed in DCP correspondence.48 [Ms B] gave favourable evidence concerning [Mr I], with whom she has had
contact on many occasions. Her positive view of him needs to be considered in the milieu within which DCP field workers necessarily operate. She would also have been conscious of the fact that she would have an ongoing relationship with [Mr I] in assisting him to rebuild relationships with his children. Nevertheless I have no doubt that she gave an honest account of the gains that [Mr I] has made in recent years in attempting to put his life back on track.
[Mr I]
49 The extent of [Mr I’s] association with the mother was concealed during the
earlier trial and he did not give evidence. On this occasion the tables were turned in that he became a central figure in the proceedings. When he was first called to be cross-examined in September 2009 he proved to be exceedingly uncooperative. Whilst his demeanour left almost everything to be desired, I formed the impression he is not inherently a dishonest person. He is, however, an exceptionally hot-headed and erratic individual. His undisguised contempt for the father and his (initial) desire to support the mother’s case clearly influenced his testimony. I scrutinised his evidence very carefully before I accepted any of it. He had also been assaulted some weeks before the trial and there is a possibility he had some memory loss as a result of head injuries he sustained.
50 [Mr I] had a verbal altercation with the maternal grandmother during a lunch
adjournment in the September 2009 part of the trial. He had followed her and the mother to a nearby café after he had completed his oral evidence. He wanted to speak with the mother about the status of their relationship. It was clear he was distressed by her advice to him prior to the trial that their relationship was at an end. He became enraged when the grandmother told him to “fuck off out of it” and to accept that the relationship was finished. She attempted to explain that it was not feasible for him to remain “just friends” with the mother because this would be misinterpreted.
51 [Mr I’s] characteristically extreme reaction was to inform the mother and
grandmother (and in due course those associated with the father) that he had given false testimony and now intended to return to the Court “to tell the truth”. However, when he was recalled he confirmed his earlier evidence. He said he had made his threat during the lunch adjournment “in the heat of the moment”. He said he realised he was being “stupid” and accepted he would not see the mother or [Fiona] again. He said he had been particularly annoyed with the maternal grandmother who “thinks of nobody but herself”. He said he had wanted to upset her because of what she had said to him at lunchtime, and he also said he wanted to get the father “excited”.
52 The main issues in relation to which [Mr I’s] evidence is of significance are the
extent to which he may have had contact with [Fiona] since March 2008 and the way in which he has behaved towards the mother and [Fiona] in the time he has known them. Clearly, my assessment of him also became important in my determination of the likelihood of him carrying out the appalling threats he later made against the mother, the father and [Fiona].
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Sexual abuse investigations
53 I propose to deal with this issue first as it is a discrete topic; is somewhat stale; and seems less likely to be a cause of future disputation than the other issues.
54 The possibility of [Fiona] having been sexually abused was not raised during the
substantive part of the 2007/08 trial. The issue surfaced after the trial had concluded, but before judgment was delivered. The context in which it arose was that the father had refused to return [Fiona] to the mother because he believed she had arranged for [Fiona] to be repeatedly examined by [Dr T] for signs of sexual abuse. The mother acknowledged that [Fiona] had been examined, but informed me at a hearing in March 2008 that she accepted the advice that there was no evidence of abuse. I made an order for [Fiona] to be returned to the mother. I made clear that the untested evidence provided in that part of the proceedings would not be taken into account in the final decision unless application was made to reopen.
55 Notwithstanding the father’s failure to seek to have the proceedings reopened, he
again sought to agitate this issue in the most recent trial. Given the father’s belief that the mother has continued to have [Fiona] examined for sexual abuse, I considered it appropriate to allow the issue to be raised. The topic also needs to be considered in the context of the consent order made on 24 December 2008 restraining the mother from having [Fiona] examined “for any suspected sexual abuse … other than at Princess Margaret Hospital or at such other institution that Princess Margaret Hospital may recommend”.
56 I do not propose to trace each of the occasions on which [Fiona] was examined
by [Dr T] and at the Joondalup Health Campus. Nor do I propose to recite each of the relevant entries in the communication book on this topic. I have considered the records relating to each examination and I have read all of the relevant entries in the book. My findings may be summarised as follows:
• [Fiona] did on occasions suffer from irritation/redness in her genital area; • the mother was genuinely concerned about [Fiona’s] wellbeing; • the mother conveyed her concerns about [Fiona’s] thrush/redness to the father (by notes in the communication book and in correspondence) in what was generally an entirely appropriate fashion and made sensible suggestions about prevention and treatment; • the closest the mother came to accusing the father of any impropriety was in the entry in the book of 3 November 2007 in which the mother noted, “[Fiona] came home on Tuesday with a very red and sore vagina. Please explain how this happened”; • the mother and/or the maternal grandmother allowed [Fiona] to believe that the irritation she sometimes felt in her genital area was somehow the fault of the father, which caused her to behave in the way described by the father and by other witnesses (i.e. when she was being changed); • the mother did suspect that the father may have been interfering with [Fiona] and led [Dr T] to believe that she suspected him of sexual abuse;
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• the father’s complaints about [Dr T’s] conduct ignored the information [Dr T] had given him about the examinations she performed; • [Dr T] carried out her investigations in a professional fashion and made appropriate referrals; • the mother did not follow through on the referrals because, having spoken with [Dr T], she appreciated they would not establish there had been inappropriate conduct; • the mother did not make any accusations about the father to the Court or to DCP, but continued to hold suspicions about the father’s behaviour for longer than in hindsight seems to have been appropriate; • the maternal grandmother directly accused the father of sexual molestation of [Fiona] on 1 January 2008 (the circumstances are described below); • the maternal grandmother subsequently took [Fiona] to see [Dr T] (in February 2008), but far from suggesting that [Fiona] was being abused, she told the doctor that the previous problems were not recurring; • the mother has told the maternal grandmother there is no reason to consider the father has engaged in sexual abuse; • the mother has not engaged in “doctor shopping”; (although the father complained strongly about my refusal to allow him to issue a subpoena to prove this allegation, he failed to act when I later reversed my decision); • the mother has not continued to take [Fiona] for investigation and no longer suspects the father of sexual abuse; • the mother has not breached the order relating to investigation of concerns about sexual abuse. 57 There are nevertheless some aspects of the mother’s conduct relating to this
issue that do not reflect well on her. In particular I am concerned about the extent to which [Fiona] has been led to believe that her father has interfered with her or not attended to her physical hygiene. I am, however, satisfied that the mother’s primary interest has been [Fiona’s] welfare. [Dr T] gave evidence that the mother always seemed “very loving” and concerned for [Fiona]. She thought she was a “good mother” and had no concerns about her interaction with [Fiona]. She never found any indication of neglect or abuse in her many consultations, a significant proportion of which related to issues other than concerns about sexual abuse.
Concerns about child-care
58 The father raised a number of concerns relating to [Fiona’s] attendance at
child-care. He considers she has been left in child-care for too many hours at a time. He also complains that the mother has failed to authorise the child-care centres to provide him with information and that some of the centres have refused to provide information, even when authorised.
59 The father’s concerns need to be considered in light of the fact that the mother’s
source of income since the last trial has been as a worker in child-care centres. His concerns need also to be considered in the context of the order made following the
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earlier trial requiring both parents to authorise any “school or other educational establishment attended by [Fiona] to release information to the other parent regarding [Fiona]”.
60 The mother was previously employed on a full-time basis at [a child-
care centre], both as a worker in the centre and as a housekeeper for the proprietor. The mother ceased working in that capacity in November 2008. As [Ms T], the proprietor, was ultimately not available for cross-examination, I am unable to make any finding in relation to her claim that she terminated the mother’s employment because “I feared for [the mother’s] safety while she was at my home. I was fearful [the father] would do something to hurt [the mother] or damage my home or even hurt my own family”. Whilst I am unable to take that evidence into account, documents attached to the father’s affidavit establish that [Ms T] and her staff complained to the father that they were being harassed and intimidated by him. Thus, for example, [Ms T] sent an email to the father on 22 May 2008 informing him that she regarded correspondence sent by him as “harassment, along with your ongoing phone calls and emails in a threatening manner”. [Ms T] also sent a letter to the father’s solicitors in response to a letter from them dated 3 October 2009 (see below) in which she said:
You can also advise [the father] I do not appreciate that he [h]as Security watching my personal premises at …. [The father] believes [the mother’s] boyfriend a man called [Mr I] lives at my premises, he does not reside at [my premises].
I have no involvement with his personal life or his custody issues, and for him to threaten my husband on the telephone on Sunday night, and to advise my husband he is going to have my property raided, he has gone too far. Advise [the father] not to enter my property and to leave my family out of his personal problems/issues. He will be dealing with my lawyers (Dwyer Durack) directly on a personal issue if he continues to threaten my family, or come near my property.
61 It was soon after this letter was sent that [Ms T] terminated the mother’s
employment. The fact she has thereafter been supportive of the mother’s case leads me to conclude that the mother is justified in claiming she lost her job because of the father’s behaviour. Thereafter, the mother was able only to secure casual work in other child-care centres on an “as needed” basis.
62 The mother acknowledges there were occasions when she had [Fiona] enrolled
in child-care for 12 hours and more a day. The mother’s routine when she was at the [child-care centre] was to commence work at about 6.30 am and then go to the proprietor’s home for three or four hours to do her housework. She would then return to the centre for the afternoon shift. This arrangement involved [Fiona] commencing at child-care at around 6.30 am and concluding commonly at around 6.30 pm. When the father put to the mother that this was excessive, the mother noted that she did not receive any child support, had a mortgage and had to work long hours “to make money to keep a roof over our heads”.
63 I accept the mother’s evidence that [Fiona] enjoyed attending child-care. She is
an only child of a mother who has no relatives in Perth. I also accept the mother’s
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evidence that she would not have enrolled [Fiona] for such long periods were it not for the fact that she needed the money. Given the level of animosity it was not a realistic option for the mother to negotiate with the father to look after [Fiona] during the time she was working. Any efforts to make such arrangements would inevitably have led to further conflict.
64 In circumstances where the father has paid nothing to the mother for the support
of [Fiona], I do not consider she had any reasonable alternative than to seek employment. I do not consider that the enrolment of [Fiona] in child-care for extended hours (especially as the mother was usually working in the same centre) provides evidence of inadequate parenting.
65 I also do not consider there is any real substance in the father’s complaints
relating to the failure of the mother and/or the child-care centres to provide him with information concerning [Fiona]. The orders made after the last trial required the mother only to authorise any “school or other educational establishment” to release information to the father. I am not convinced that a child-care centre is a “school or other educational establishment”, notwithstanding the business names used by some child-care centres.
66 Even if I am wrong, the mother’s obligation was to ensure the centres were
authorised to provide information to the father. The father acknowledged that the [child-care centre], which was the primary establishment attended by [Fiona], had been authorised to provide information. It was unclear when that authority was provided; however, the order was only made on 28 March 2008 and the father acknowledged he was informed on 2 May 2008 that the mother had provided the authority.
67 The fact that the centre then refused to provide information was not a matter
within the mother’s control. The correspondence attached to the father’s affidavit indicates that the management considered they would be in breach of statutory obligations if they released the information. It is also apparent the centre did not take kindly to the father’s threats of legal action and costs orders.
68 In any event, the demands made by the father relating to the provision of
information were, in my view, unreasonable. Thus, for example, his lawyers wrote to
the child-care centre on 26 August 2008 seeking the following on a weekly basis:
a) the “sign in, sign out sheet”; b) “daily sheet” usually provided daily to parents; c) “toddler report” which he understands is made available to the parents each Friday; and d) details of what programs your Centre has and in which programs, if any, [Fiona] is involved.
69 This request was followed by a letter dated 9 September 2008 which confirmed
that the father’s lawyers had been informed that the information would not be released until advice had been received from the “Licensing Department”. The letter from the
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solicitors demanded that the information be provided “by close of business today”, failing which an application would be made for court orders and costs. On 3 October 2008 the solicitors wrote to the centre, again demanding the same records and threatening to file a complaint with the “Chief Executive Office of the Department of Public Service” if the documents were not provided.
70 The father also became embroiled in a dispute about provision of information
with the management of the [another child-care centre] which [Fiona] attended in
2009. On 2 April 2009 the manager of that centre wrote to the father in these terms: As you might understand I am very busy in my position and despite being given permission from [the mother] I am, under normal circumstances, under no legal obligation to provide this information to you.
However, since I have received court document today requesting information it will be provided in due course to the family court as requested.
Please do not contact the centre or myself again as this matter is obviously being dealt with by the courts, and I would prefer to keep it this way.
71 I find no substance in any of the father’s complaints regarding [Fiona’s]
attendance at other centres, some of which she attended for only a matter of a few days whilst the mother undertook relief work there. The mother had no obligation to inform the father of the child’s attendance at these centres, nor do I consider she had any obligation to authorise the centres to provide any information to the father (for the reason already expressed).
72 The mother’s actions in not recording the father as the “contact person” at
child-care centres must be understood in light of the fact that once the father becomes aware of where she is working he will follow her there and cause aggravation for the staff. Furthermore, in the case of at least one centre, the standard form the mother was required to complete expressly stated that parents were not to be shown as a “contact person”.
73 The father has also shown a capacity to misuse information obtained from child-care centres, as can be illustrated by this extract from his affidavit:
43. As at August 2008 until July 2009 [Fiona’s] behaviour has been concerning as to when it comes time to take her to the mother after my Court appointed time [Fiona] screams “I don’t want to go to Mummy, Daddy” and makes it very difficult to place her in the car to return to the mother’s home. These actions by [Fiona] have been demonstrated previously on returning [Fiona] to the mother whereby the mother subsequently took [Fiona] to [Dr T] on 18th
August 2008. As per “[W] 25” and its attachment it states “got upset when time to go home” are observations made by staff at [another child-care centre] when [Fiona] is to return to the mother and her home.
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74 The father’s quotation from attachment “[W] 25” was selective and deliberately
misleading. The impression he intended to create was that [Fiona] was upset about being returned to her mother because of some difficulty in their relationship. The quotation came from the part of the daily information sheet, which requires information to be recorded next to the heading, “General Disposition (e.g. happy/settled)”. A child-care worker has inserted the following words in the space next to that, “Good day, loved taking part in all activities, got upset when time to go home”. Had the father cited the full entry in his affidavit it would have been obvious that the child-care worker was probably intending to say nothing more than that [Fiona] had been enjoying taking part in the activities and was upset about being interrupted.
75 I am satisfied the father’s primary interest in obtaining information about [Fiona]
is not to inform himself about [Fiona’s] wellbeing. I consider his primary aim is to
fish for information which he hopes will help build his case against the mother.
The mother’s consumption of drugs
76 The mother has used marijuana in the past, as discussed in my judgment in
March 2008. She claims that she ceased using marijuana in September 2007. She advised her doctor about this at the time. Very shortly afterwards she tested positive for marijuana; however, this does not mean she had not ceased use of the drug recently as she claimed. The mother was asked to take a random drug test shortly before the commencement of the trial in September 2009. The results were negative for all illicit substances, including marijuana. I am satisfied that the mother has ceased using marijuana. She would be well advised to refrain from consumption of illicit drugs in the future since, quite apart from other important considerations, any judicial officer dealing with the matter in the future would be likely take a dim view of any lapse.
77 As discussed in my previous judgment, the mother has a longstanding issue with
depression. She has continued to receive medication to assist her with this problem since she ceased use of marijuana. [Dr T’s] evidence is that her condition is now “stable and well controlled”. I accept the Single Expert’s assessment that the mother’s depression is not “a major risk factor in the absence of any evidence this has significantly interfered with her parenting capacity”.
Why [Fiona] should not be brought into contact with [Mr I]
78 Before considering the father’s claims about [Fiona] having been brought into
contact with [Mr I], it is important to provide background to the order made in March
2008 designed to prevent them from having contact. I said this in my reasons:49. … [The mother’s] failure to call [Mr I] as a witness, and her objection to the introduction into evidence of the DCP file relating to his children, leaves me with no option than to proceed on the basis that [Mr I] is a person who would be a danger to [Fiona]. The full extent of that danger cannot be assessed until the Court has been given full information and also has an opportunity to make its own assessment of [Mr I]. It would seem from a concession made
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by [the father’s] senior counsel that it is not suggested that [Mr I] would be likely to abuse [Fiona] but may engage in behaviour in her presence that could cause her harm. It is, however, most unsatisfactory that I am left to speculate about matters as important as these.
50. As a minimum, it seems that quite apart from concerns about his drug use, [Mr I] has serious anger management issues. For example, he has admitted in the restraining order proceedings that as recently as May 2007 he was involved in a pub brawl with his brother and deliberately damaged his father’s motor vehicle. He was also involved in a physical altercation with [the father] at a handover in August 2007, although it seems [the father] may not have been entirely blameless in this disgraceful incident, which was played out in the presence of [Fiona].
79 I have now had the advantage of seeing [Mr I] give evidence and I also have the
benefit of much more information concerning him. In particular I have heard from the DCP worker who has had significant involvement with [Mr I]. I regard her evidence as important because it helps explain why the mother has been prepared to continue a relationship with a man whose background should have rung “alarm bells”.
80 [Mr I] has a criminal record dating back to 2001 when he was about 27 years of
age. His convictions are primarily for possession and use of drugs and for criminal offences commonly associated with drug addiction (stealing, receiving, burglary, fraud and the like). He was involved in a long-term but volatile relationship with a woman who was also a drug addict. They ended up in gaol at the same time for drug related offences. Their children were removed by DCP, and have now been in the care of the State for some years. The reasons for the removal appear to have largely been because of the domestic violence to which the children were exposed and the neglect associated with the drug addiction of their parents. In April 2006 [Mr I] assaulted his partner, resulting in her being taken to hospital. He was convicted of aggravated assault occasioning bodily harm and was fined $3,000. He breached a restraining order his partner obtained against him. In April 2007 he was involved in the altercation with his father and brother previously mentioned.
81 Although [Mr I] has a serious criminal record, there is no evidence he has ever
intentionally or deliberately harmed his children, or any other child. Indeed, I was inclined to accept his evidence that he has never physically punished his children. Whilst at one stage it was suggested he had sexually abused one of his children, DCP does not consider there is any evidence to substantiate the allegation. Nevertheless, I accept the assessment of the DCP worker that [Mr I] does not have the ability to put the needs of his children before his own when he is abusing drugs or alcohol. If he is under the influence of drugs or alcohol he may cause harm to children, either by exposing them to domestic violence or by neglect.
82 On the other hand, I also accept the DCP worker’s evidence that [Mr I] is
capable of “very positive loving relationships with his children”. I also accept her assessment that he has been making significant improvements over recent years. These gains have been achieved during the period of his association with the mother.
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The evidence of the DCP worker suggests that the mother had provided a degree of stability in his life that had previously been missing. He has a close emotional attachment to the mother. He has a very different relationship with her than the one he experienced with his former partner.
83 The drug screening required by DCP provides corroboration for [Mr I’s] claim
that he had been dealing with his drug addiction. He claims not to have used amphetamines since ending his relationship with his former partner and claims not to have used marijuana since May 2008. The DCP worker had not seen signs of him being affected by alcohol during the many times they had been in contact. (Although the Single Expert thought he may have smelled of alcohol when he came for his interview, [Mr I] denied that he had been drinking.) After “working closely” with [Mr I] for six months, the DCP worker went so far as to report in November 2008 that she had found [Mr I] “on all occasions… to be very pleasant”. She also said:
He appears to be courteous, respectful, reliable and responsible. [Mr I] has never missed a visit with his children and the children are attached to him and look forward to spending quality time with their father. [Mr I] is skilled at giving each of his children attention and can quickly defuse any tense situation that may occur when children come together and compete for their father’s attention.
The visits have been supervised in the past, however given our current assessment of [Mr I] as being a positive influence upon his children we are now prepared to consider unsupervised visits.
84 I am satisfied, not only from the evidence given by [Mr I] and by the mother, but
also from [Mr I’s] demeanour when giving evidence, that he has warm and positive feelings for [Fiona] and would, at least when sober and free of drugs, be anxious to do what he could to promote her interests. I accept that given the evidence about his past behaviour it may seem improbable that [Mr I] has always behaved appropriately in the company of the mother and [Fiona]. Nevertheless, this might be true, as the mother maintains. This would be consistent with his conduct as described by the DCP worker.
85 My difficulty in making a positive finding to that effect is my concern about the
mother’s credibility and the fact that she would know it would be damaging to acknowledge she has tolerated bad behaviour on the part of [Mr I]. On the balance of probabilities, I consider it likely that, for much of the time the mother spent with [Mr I], he “behaved” and was affectionate and supportive. However, it is likely that on some occasions he would have demonstrated a lack of control, which would have made life unpleasant for the mother (and for [Fiona] when [Mr I] was spending time in the home with her).
86 I would be concerned in the longer term, if the mother resumed her relationship
with [Mr I], that circumstances might arise in which she would be at risk of physical harm from him and that [Fiona] might be exposed to that behaviour. Whilst I am satisfied [Mr I] would not intentionally do anything to harm [Fiona], I have no confidence that he has sufficient self control to always behave appropriately in her presence.
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87 I have taken into account the inappropriate (often infantile) behaviour of [Mr I]
towards the father and his de facto wife (albeit the father has routinely behaved in a provocative fashion). I have particularly taken into account the vicious threats [Mr I] made against the father, the mother and [Fiona] (and their possessions and pets) in September/October 2009. Whilst I doubted at the time that such threats would be acted upon (and fortunately they have not been), there can be no guarantee they would not be acted upon in the future. [Mr I] was obviously exceedingly drunk or under the influence of drugs when he made the threats. Whilst I accept that his behaviour occurred in the context of his devastation at the termination of his relationship with the mother, it nevertheless highlights the very concerning and unpredictable elements of his character. Although I consider there are some redeeming features of his personality, [Mr I] has had a very troubled life and I consider it would be contrary to [Fiona’s] best interests for her to have any contact with him.
Has [Fiona] been in contact with [Mr I]?
88 On 3 September 2007 the father obtained a restraining order preventing [Mr I]
from coming into contact with [Fiona]. The order was served a few days later. On 16 September 2007 [Mr I] was seen at the mother’s home by a private investigator engaged by the father. [Fiona] was present and [Mr I] subsequently pleaded guilty to breaching the order.
89 The mother denies that [Mr I] has come into contact with [Fiona] since
16 September 2007 (save for one occasion close to the time of trial when the father was following him while he had [Fiona] in his care – notwithstanding the existence of the restraining order). On the other hand, the father is convinced that [Mr I] has routinely breached the order – in fact, he suspects he has actually been living with the mother and [Fiona].
90 I am satisfied that [Mr I] has not lived in the mother’s home since 16 September
2007, save for times when [Fiona] has been with the father (and on the occasion when the mother and [Fiona] went to [the Eastern states]). I am less certain whether [Mr I] may have visited the home on some occasions when [Fiona] has been present or whether [Fiona] may have been brought into contact with [Mr I] away from the home.
91 The father acknowledges that, despite his strenuous efforts, he has not been able
to obtain any evidence to establish that [Mr I] has spent any time with [Fiona] since September 2007. He has personally carried out extensive surveillance over a long period. He has engaged a private investigator who has not once seen [Mr I] in the company of [Fiona] since 16 September 2007, although he has observed him with the mother on “a number of occasions”. The private investigator has been outside the mother’s home and place of employment, as well as tailing her in her car. (The claim in the investigator’s affidavit about seeing [Mr I] at the mother’s home on 16 September 2008 was clearly a typographical error). The father has also arranged for the police to undertake a number of “welfare checks” at the mother’s home (often at night). None of these have provided any evidence of [Mr I] being in the home when [Fiona] is present.
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92 The father gave hearsay evidence of [Mr I] having been seen in September and
October 2008 “scaling the rear boundary fences of adjourning [sic] properties without the permission of the owners”; however, the people who had allegedly witnessed these events were not called. (The neighbours have also apparently resisted the father’s requests to install video surveillance to prove that [Mr I] has been hopping over the back fence.)
93 I am satisfied that since September 2007 [Mr I] has maintained residences away
from the mother’s home. He has, for example, lived in [various addresses], in a caravan park and at the confidential address he gave me during his evidence. It seems it was whilst [Mr I] was living in the last mentioned establishment that he was attacked by a couple of fellow residents. It is noteworthy that following that attack he was not taken to the mother’s home to recuperate, but was instead put up in a motel (where the mother visited and stayed overnight at a time when [Fiona] was with the father).
94 The only evidence supportive of a finding that [Fiona] has been brought into
contact with [Mr I] is that given by the father and his de facto wife about repeated comments [Fiona] has made during contact visits. I accept their evidence that [Fiona] has been making statements that would suggest she has often seen “[Daddy E]” (the name by which [Mr I] has been known since the time when [Fiona’s] own father decided for a period not to have any contact with her). The real issue is whether [Fiona] has been telling the truth.
95 I have no doubt that [Fiona] learned long ago to appreciate that her father is
greatly interested in [Mr I]. It would not be the father’s “style” to sit back and wait for [Fiona] to volunteer information, although I accept she probably now does so without prompting. Any statement by [Fiona] about [Mr I] would be likely to evoke expressions of sympathy and concern for [Fiona’s] wellbeing (the father has routinely told [Fiona] she is “safe” as soon as she leaves her mother’s care). Any statements now being made by [Fiona] about contact she has had with [Mr I] would be badly contaminated by her exposure to her father’s fascination with this subject.
96 Some of the claims [Fiona] has made about [Mr I] could be seen as having an air
of exaggeration. If they are true then the mother has continued her relationship with him in the face of atrocious behaviour, including physical violence toward both her and [Fiona]. There is no solid evidence this has occurred, which does not mean of course it did not happen, especially as the mother would have an interest in keeping such information from the Court.
97 The statements [Fiona] has been making to the father need to be assessed in light
of what she has also been telling her mother about what happens when she is with the father. Thus, for example, I accept that [Fiona] told her mother on 31 October 2008 she was upset because “[Daddy] hit Nanna, then Nanna cried, then I cried”. On 5 January 2009 [Fiona] informed the mother that the father shuts her in her room all the time. On 8 May 2009 [Fiona] said to the mother, “Daddy gets angry with me, he is not nice to me [Ms G] or Nanna”. On 22 May 2009 [Fiona] said, “Daddy hit me on the face because I wanted to brush my own hair and he hit me on my head, I am scared of him I don’t like him”. My acceptance of the fact that [Fiona] has said these things
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does not lead me to conclude they necessarily happened – although there is
a possibility they did.98 The Single Expert endeavoured to ascertain to what extent [Fiona] was aware of
[Mr I]. When he asked her who she lived with, she said she lived with her mother and with “Grandma”. He asked her who was “[Daddy E]” and she said “No one”. [Fiona] is not, however, a reliable reporter because in her first interview with the Single Expert she did not identify the father’s de facto wife as living in the same house as the father. She did, however, correctly identify the de facto wife as living with the father at the second interview. The Single Expert went on to note that in the second interview [Fiona] showed “negligible reaction to [Daddy E] (and also the names [M], [Mr I]). Her responses were like she had no idea what I was talking about with the names”.
99 The Single Expert went on to offer his opinion that:
With a child of [Fiona’s] age, her lack of reaction would suggest a lower likelihood that she has had meaningful interactions which (sic) [Mr I] (by the names of [Daddy E], [M], or [Mr I]) in the last 6 months (when contrasted with her reactions to Mummy, Daddy, [the father’s de facto wife], [C] the dog, etc). It is an unfortunate aspect of the age, but what it means is that [Fiona] cannot be interviewed about a number of the various allegations being raised, for example the father raising concerns about the child saying things about ‘[Daddy E]’.
100 I find it most likely that [Fiona] has continued to speak about “[Daddy E]”
because of a number of factors. One is her father’s fascination in hearing about [Mr I]. Another is that the mother has had an ongoing association with [Mr I] and has not sought to hide that fact from [Fiona]. For example, she acknowledges she will speak to [Fiona] about “[Daddy E]” when she has been on the telephone with him. [Mr I] has also purchased toys and equipment for [Fiona]. It is possible [Fiona] was informed that it was he who had provided these things. By all of these means [Mr I] would have been kept alive in [Fiona’s] mind, even if she has not actually been brought into contact with him.
101 I accept that [Mr I] has told the father that he has been in contact with [Fiona]
and said there is nothing the father can do to keep him away. I consider it is likely [Mr I] has said these things with the intention of “stirring” the father because of the strong reaction such comments elicit. Thus, for example, [Mr I] informed the father on 3 April 2009 that he ([Mr I]) was [Fiona’s] biological father and at the same time claimed he had been in recent contact with [Fiona]. The father’s response to that provocation was to seek an order for parentage testing. The order was duly made, but the father then did not follow through with the testing procedures. I am satisfied he did not pursue this course because he knew that [Mr I] is not [Fiona’s] father.
102 I have not overlooked the evidence about [Mr I] having shown the father
photographs on his mobile phone, which [Mr I] claimed were recent photographs of him with [Fiona]. The photographs were not produced and therefore acceptance of the father’s evidence that they were recent depends on his credibility. As he has no credibility, I am unable to make a finding that the photographs were taken after the
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date on which the order was made restraining [Mr I] from coming into contact with
[Fiona].103 My conclusion, on the balance of probabilities, is that [Mr I] has not been in
contact with [Fiona] since September 2007. In coming to my ultimate decision, I have recognised the possibility that I may be wrong in reaching that conclusion. The mother has previously lied about her association with [Mr I]. She has (at least until September/October 2009) never accepted it is in [Fiona’s] interests not to be brought into contact with [Mr I]. [Mr I’s] own credibility is suspect. It is feasible that the mother and [Mr I] have been clever enough to evade even the extraordinary level of surveillance undertaken by the father and by his paid help.
Will [Fiona] be brought into contact with [Mr I] in the future?
104 Given my view that it would be contrary to [Fiona’s] best interests to have
further contact with [Mr I], it is important to consider the likelihood of the mother allowing [Fiona] to come into contact with him in the future. The mother insists this will never occur because their relationship has finished; however, she candidly accepts she has no credibility on this issue.
105 The mother claimed at the earlier trial that she had told [Mr I] shortly before that
hearing that their relationship was finished. Whilst I accepted at the time that may be true, I doubted she would remain away from him, as appears from the following extract from my judgment:
52. I am not satisfied that [the mother] has given up her relationship with [Mr I]. On 10 September 2007 [the mother’s] solicitors wrote to [the father’s] solicitors advising:
“As a consequence of your client’s second restraining order application [Mr I] has had to leave our client’s house and their relationship we are advised appears now to be over.”
53. At the hearing in November 2007, [the mother] claimed her relationship with [Mr I] had finished “a few days ago” when she had visited to tell him “the relationship had to end… because of everything going on with the proceedings”. Whilst I am prepared to accept that [the mother] may have told [Mr I] that they cannot continue their relationship, she is very strongly attached to him and would have difficulty in terminating their association altogether…
106 My doubts were well-founded, as the mother made no secret of the fact that she
quickly resumed her association with [Mr I] after the hearing. Initially she routinely allowed him to visit her (when [Fiona] was with the father), but in more recent times he has not been coming to her home – even when [Fiona] is not living there. This change in the way their relationship had been conducted relates to the restraining order the father obtained for the protection of [Fiona]. The father’s view was that the order prevented [Mr I] visiting the mother in her own home at any time. His position arguably had more to do with him seeking to control the mother’s life than it had to do with providing protection for [Fiona]. In this regard it is important to note that the
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mother had previously rebuffed the father’s concerted efforts to reconcile, which
continued up to the previous trial.107 I do not propose to discuss in any detail the many issues surrounding the
wording of the restraining order the father obtained to protect [Fiona]. It is sufficient
to record the following:
• The police wrote to the father on 12 November 2008 saying that the order had two possible interpretations – and if there had been a “technical breach” by [Mr I] being in the mother’s home when [Fiona] was not there it was of “such a minor nature” that it was not worth pursuing. • On 24 December 2008 I delivered a judgment and made an order making clear that nothing contained in my orders should be deemed to prevent [Mr I] from being in the mother’s home when [Fiona] was not present. • Subsequently the father was able to persuade the Magistrates Court to clarify that the order meant [Mr I] was not able to visit the mother in her home, even when [Fiona] was living with the father. Up until that time there was room for doubt about the effect of the order (especially in light of the legislative provisions relating to the primacy of certain types of Family Court orders). • On 13 March 2009 (which was when clarification of the restraining order was obtained) the father approached [Mr I] at the [local] Police Station and said, “You are going to gaol, I will make sure of it”. Later that day [Mr I] came to the mother’s home, after she was informed by him that he had just had clarification from the police that he was allowed to be there, provided [Fiona] was not. The father arrived and parked across the road with his video camera. The police then arrived and informed [Mr I] that he had to leave, which he did. [Mr I] was then charged with breaching the order. • On 1 April 2009 [Mr I] attended at the Magistrates Court in relation to the breach. I accept his evidence that the father was there “waving at me, pointing and making gestures with his hands suggesting I was going to be in hand cuffs” and that after leaving court the father followed him. • I am satisfied on the balance of probabilities that [Mr I] thereafter largely (if not entirely) remained away from the mother’s home. 108 It seems likely that in the period after April 2009 the mother was seeing [Mr I]
less frequently than at earlier times in their relationship. Their association ceased altogether some time after 14 August 2009 when the mother informed [Mr I] that their relationship was at an end. This occurred after the mother and [Mr I] had been interviewed by the Single Expert. I am in doubt whether to believe the mother that she ended the relationship before receiving a copy of the Single Expert’s report, which she would have realised indicated that her involvement with [Mr I] was seen in a very negative light. The mother’s motivations for ending the relationship at the time she did are, of course, known only to her. She was acutely aware that the trial was imminent. She was most anxious to achieve an outcome that would ensure [Fiona] remains with her. She would have known that her association with [Mr I] was the weak point in her case.
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109 In considering the mother’s motivations, it is to be noted that although the father
suggested that the mother and [Mr I] had “presented as a couple in a committed relationship” during the interview with the Single Expert in August 2009, the Single Expert revealed that the mother had expressed significant doubts about whether she would continue the relationship. The Single Expert was right, however, to point out that the mother’s ambivalence was not about the relationship itself, but rather about the pressures associated with its continuation. I did not accept the mother’s assertion that she told the Single Expert that she was “unhappy in the relationship and did not see it continuing much longer”. Nor did I accept her claim that “[Dr W] took the view that our relationship would continue when I told him it would not”.
110 Were it not for the events of September/October 2009, I would have remained as
sceptical about the mother’s claim that the relationship has really ended as I was at the conclusion of the proceedings in 2007/08. However, I am satisfied that the cumulative effect of [Mr I’s] erratic behaviour during the trial in September 2009, and his subsequent threats to harm not only the mother and the father, but also [Fiona], have resulted in the mother reassessing her view of [Mr I]. Whilst she believed that he would not, in fact, carry out the threats (at least against her and [Fiona]) I consider she realised he was not a person with whom it would be feasible for her to have an ongoing relationship. The mother did not seek to minimise [Mr I’s] behaviour in any way during the course of the September 2009 hearing – she described his conduct as “appalling and disappointing”. She said she could “not believe the way he has behaved” and noted accurately that, for once, she and the father were agreed on something.
111 In coming to my conclusion, I have not overlooked events that have occurred
relating to the interim restraining order the mother obtained against [Mr I] in
September 2009. In summary:
• the mother initially sought to cancel the order; • as a result, the matter was listed for a hearing in the Magistrates Court; • the mother then thought better of her decision; • having sought advice from the police she realised if she did not attend the hearing the order would remain in place. She therefore made a decision not to attend; • however, she then failed to attend the confirmation hearing and the order lapsed. attend the confirmation hearing because of ill health. I consider it at least as likely she did not want to attend the hearing for other reasons. These may have included some or all of the following:
112 I have reservations about the veracity of the mother’s evidence that she did not
• she did not want to give evidence against [Mr I], since she still has some affection for him; • she did not want to go through what potentially could have been a very volatile hearing; • she continues to believe that [Mr I] will not carry out the threats he made against her and the hearing was therefore not worth the bother;
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• she is worn down by continuous appearances in various courts over the last few years and didn’t want another one. 113 The lapse of the restraining order is, in one respect, academic, as I suspect the
mother would not contact the police unless [Mr I] also committed an act which itself would constitute an offence. This is precisely what she did when he made the threats after the September 2009 trial. Although it was suggested the mother had not taken appropriate or sufficient action in response to these threats, I am satisfied she took adequate action to ensure the protection of [Fiona]. She telephoned the police. She advised them she had a tape recording of what [Mr I] had said. She sought a restraining order. I accept that she could have done more to “press charges” against [Mr I]. Whether that would have provided more or less protection for herself or [Fiona] is an entirely different matter. I am not in any way convinced it would have.
114 The mother was also criticised by the Independent Children’s Lawyer and the
Single Expert for allowing her mother to make contact with [Mr I] to arrange an affidavit in support of an application to have [Fiona] returned to her care (i.e. after he had made his threats and the mother had been persuaded to allow [Fiona] to move temporarily to live with the father). I consider this was, at most, an error of judgment and not an indication that the mother would seek to resume their relationship.
115 The father claimed at a hearing in March 2010 that he had seen [Mr I] at
a restraining order hearing in [a suburban court] on 25 February 2010. Amongst other things, he claimed to have seen (from a long distance) [Mr I] jump into the back seat of the mother’s car. The father claims he took a photograph of [Mr I] near the court on this day; however, he was unable to photograph him jumping into the car because it was too far away. The mother said she had not seen [Mr I] on the day of the hearing, and strongly denied that he got into her car. I accepted her assertion. I have examined the photograph the father tendered in evidence (including using the “zoom” facility recommended to me by the father), but the photograph is not sufficiently clear to identify the subject as anything other than a white adult male walking down the other side of the street wearing a cap and carrying what appears to be a backpack. It does not depict “[Mr I] yelling out abuse”, as was claimed by the father in his affidavit filed 19 March 2010.
116 At this point it is again important to stress that I have had the mother appear
before me on a large number of occasions over a period of years. I have seen her dealing with many different sets of circumstances. Whilst there is no guarantee she would not resume her association with [Mr I] in some form, my assessment is that it is most probable she will not. Apart from the other considerations I have mentioned, the mother will now be aware that my firsthand assessment of [Mr I] is unfavourable and that any association with him would put at risk [Fiona’s] placement with her. The mother also knows the lengths to which the father will go to obtain evidence that she is continuing her association with [Mr I]. She knows that, whether she is in Perth or [the Eastern states], the father will seek to find ways of checking up to see whether she is in contact with [Mr I].
250 It is true I made reference to this issue in my March 2008 judgment; however,
the father’s evidence ignores my finding that I was not persuaded that the mother ever accepted the terms of his “offer” (which I described as a “wish list”). His evidence also makes no reference to other findings I made, including those about him attempting to minimise his child support payments and informing the Child Support Agency he was unemployed when he was not. My findings are to be found at paragraphs 29, 30 and 128 of my original reasons.
251 Although the relevant issues were not the subject of any submissions at trial, I consider the father’s application to be fundamentally flawed.
252 First, there is no evidence in the father’s trial affidavit of him having ever
followed the Child Support Agency’s internal objection process mandated by the
Child Support (Registration and Collection) Act 1988.253 Secondly, if that procedure had been followed, the first review of the decision would have been within the jurisdiction of another tribunal, not this Court.
254 Thirdly, the mother did not register her claim for child support until 7 June 2006. The payments the father wishes to have “credited” were made prior to that date. The Child Support Registrar can only credit payments made in relation to an “enforceable maintenance liability…in relation to the child support enforcement period” (see s 71 of the Child Support (Registration and Collection) Act 1988). The payments made by the father were not in relation to an “enforceable maintenance liability” and the “child support enforcement period” had not commenced at the time the payments were made.
255 Even if it were not for these three fundamental obstacles, the father’s failure to
provide anything approaching adequate support for [Fiona] (whilst spending hundreds of thousands of [Fiona’s] money on legal fees and private investigators) satisfies me it would be quite inappropriate to grant any relief to the father in relation to child support issues.
The mother’s contravention application
256 The mother filed a contravention application on 3 April 2009 which related to
the father’s alleged refusal to use the communication book and his actions in having [Fiona’s] hair cut. The application was adjourned to trial at the hearing on 8 April 2009 after the father had entered a plea of “Not Guilty”. Although the matters were therefore strictly before me, the processes followed during the trial were such that I am not satisfied it would be appropriate for any adverse finding to be made against the father, even if the evidence warranted such a finding. I will, however,
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make some brief observations about both matters in order to explain why I intend to
dismiss the application.257 Although the mother complains about the father not using the communication book over an extended period, the contravention alleged was that on 29 October 2008 the father “without reasonable excuse failed to utilise and return the court ordered communication book…”. Although the point was not taken by the father at trial, the mother’s affidavit indicates that 29 October 2008 was the date she sent the communication book with [Fiona] and that it was 31 October 2008 when the book was not returned.
258 In his trial affidavit the father did not deny that he failed to return the book on
31 October 2008, but took issue with the mother’s claim in her affidavit of 25 March 2009 that “to date the communication book has not been used”. The father attached to his affidavit three entries made in the communication book in November 2008, which he said demonstrated there had been communications in the period after 31 October 2008. He went on to explain why the book had not been used subsequently (the mother being in [the Eastern states] in December 2008 and his time with [Fiona] being suspended in January 2009). Some of the points made by the father appeared valid, but for present purposes I need concern myself only with the contravention alleged. The contravention, as pleaded, cannot succeed since 29 October 2008 was not a day on which the father had to return the book. Given the quasi-criminal nature of contravention applications I cannot find the father guilty of contravening the order by not returning the book on 31 October 2008, since no complaint about that date has been properly brought against him.
259 The other part of the contravention application concerns the father’s actions in
having [Fiona’s] hair cut in October 2008, after repeated requests that he not do so. It is asserted this was a breach of the order made in March 2008 giving the mother sole parental responsibility. The father does not deny that [Fiona’s] hair was cut.
260 Although I have not had the benefit of any submissions, there seem to me to be
three provisions of the legislation which are of particular relevance to this part of the
complaint.261 Section 68 of the Act defines the expression “parental responsibility” in this
way:
In this Part, “parental responsibility”, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
262 Section 89AD provides as follows:
(1)
If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:
(a) has parental responsibility for the child; or
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(b)
shares parental responsibility for the child with another person;
about decisions that are made in relation to the child during that
time on issues that are not major long term issues.
(2) Subsection (1) applies subject to any provision to the contrary
made by a parenting order.
263 Section 98A relates to the obligations created by a parenting order that allocates parental responsibility. It is in these terms:
(1) This section applies to a parenting order that is in force in relation to a child to the extent to which the order allocates parental responsibility for the child to a person (the “carer”). (2) A person must not hinder the carer in, or prevent the carer from,
discharging that responsibility.
264 It would seem therefore that the father would be entitled, notwithstanding that he does not have parental responsibility, to have [Fiona’s] hair cut if such a decision was not a “major long term issue”. That expression is defined in s 7A of the Act as follows:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and (b) the child’s religious and cultural upbringing; and (c) the child’s health; and (d) the child’s name; and (e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
265 In the absence of considered argument, I am not prepared to determine whether
making a decision to have a child’s hair cut could constitute a “major long term issue”. In some circumstances it seems to me it might – for example where religious or cultural issues are involved. However, I am not satisfied the father has been afforded procedural fairness in dealing with that issue and I am not convinced the mother is any longer interested in pursuing the complaint. The important matter is to avoid dispute about this in the future. I therefore intend to make a final order along the lines of the interim order I made giving the mother sole responsibility for having [Fiona’s] hair cut.
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The pending application regarding the trust fund
266 The finalisation of these proceedings has been prolonged as a result of
applications made by the Independent Children’s Lawyer with a view to ensuring that funds promised by the father and paternal grandmother are set aside from the [W Family Trust] to cover the costs of [Fiona’s] private school education and the costs associated with these proceedings. Whilst the “evidence” now coming forward in the context of this part of the litigation throws even more doubt on the credibility of the father and his mother it is possible for judgment in relation to the substantive issue to be delivered now, rather than there being even more delay. Indeed, I understand it is now the desire of the parties and the Independent Children's Lawyer for the substantive issue to be resolved prior to finalisation of the issues concerning the trust. There are clearly some potential difficulties associated with this in light of the findings I have made in the course of these reasons. Those difficulties can be dealt with in the fullness of time. I consider it is desirable to dispose of the main issue before additional matters arise that will give rise to further applications to re-open.
| Orders | |
| 267 | Given the father’s failure to make proposals about the arrangements to be made |
| after [Fiona] moves to live in [the Eastern states], it is not possible to make all of the orders necessary to resolve the substantive proceedings. I will make the basic orders to give effect to my reasons and I will give the father liberty to provide a Minute of the orders he will seek about time to be spent with [Fiona] and communication with [Fiona]. If there is controversy about those matters I will then allocate a special appointment for further submissions to be made. | |
| 268 | I made a number of orders at the conclusion of the trial in accordance with |
| proposals made by the Independent Children’s Lawyer. These included orders for the parties to attend the Mums and Dads Forever program; for the mother to attend a domestic violence program and for [Fiona] to attend a protective behaviours course. I understand from information provided at subsequent hearings that some of these orders have now been complied with. To the extent that any orders directed to the mother are yet to be fully complied with, I will expect those to be complied with before she relocates to [the Eastern states]. In particular it is my intention that she will have completed the domestic violence program before moving. | |
| 269 | The father opposed the order sought by the Independent Children’s Lawyer |
| about him attending an anger management course. He described the proposal as “farcical”. I consider it would be in [Fiona’s] interests for the father to attend an anger management course. It is my assessment that the father has what are described as “power and control” issues that lead to him adopting a highly confrontational approach with anyone who he perceives to have wronged him. Principally this concerns the mother, but it also leads him to become involved in disputation with others. I consider attendance at an anger management course may, for example, assist to ensure that the reduced number of handovers in the future will proceed more peacefully than those in the past. That said, it is my intention in due course to order the parties to use a contact handover service – assuming such a service is available. |
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270 The father also opposed the application of the Independent Children’s Lawyer
that he should complete a “Triple P Program” to improve his parenting skills. The father said he could see benefit for the mother in attending such a course, but said he was “a wonderful father”, and that DCP had informed him he did not need such a course. The evidence of the Single Expert indicates that the father would benefit greatly from attending a “Triple P Program” which provides useful information and skills training for all parents. I intend to order the father to attend such a course.
271 Although I am hopeful both parents will refrain from consuming illicit drugs in
the future, there can be no guarantee this will not occur. I propose to give liberty to both parties to request drug testing. I do not propose to confine that request to the mother, since the father too has used illicit drugs in the past. It would be in [Fiona’s] interests for neither of her parents to be using illicit drugs. I propose to permit a random request for drug testing to be made twice each year. Both parents would then be aware that notwithstanding that they may have been able to produce one clear result, a request for a second test could be made as much as 12 months later or within the next few days. These orders will provide further encouragement to them to ensure that they do not engage in illicit drug consumption. I do not, however, intend to allow this to continue indefinitely, given the inconvenience and potential expense involved. I intend to end the testing regime after three years if there are no “positive” test results in the interim. (I propose to order the request to be made on a Monday so that the parents do not have to check their emails every day to see if a request has been made. I recognise that some drugs will work their way through the system more quickly than others, but I am primarily concerned about the consumption of marijuana, which will remain in the system longer than a week.)
272 The mother has sought an order that the father be restrained from placing her or
her family under surveillance. Whilst I am not unsympathetic to the mother’s desire to live her life free of interference from the father, the fact remains that there have been legitimate concerns about her association with [Mr I] and there can be no guarantee that she will not again strike up a relationship with him. For the reasons already explained, that would not be in [Fiona’s] best interests. Whilst I anticipate that the mother will not seek to resume her relationship with [Mr I] I consider this possibility will be even less likely in the event that she is aware that she may be placed under surveillance by the father. I therefore do not propose to grant the injunction she seeks.
273 Although an order has not been sought, I also propose to make an order
requiring the mother to keep the father (and the Independent Children’s Lawyer if still appointed) informed of the name and date of birth of any adult male person with whom she shares accommodation or who regularly stays overnight in her home. I propose to give the father liberty to issue a subpoena to police and child protection authorities for the production of any records relating to such person(s). I acknowledge that the efficacy of this order is dependent upon the mother’s compliance; however, she needs to keep in mind that whilst the father himself will not be able to conduct surveillance to see whether there has been compliance, she may be under surveillance from those employed by him.
274 The father has made it clear that he will appeal any order permitting the mother
to relocate to [the Eastern states]. In the event that such an appeal is filed the father would be entitled to apply for a stay of my orders. It is premature for me to comment
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on the likely outcome of such an application until I see the grounds of appeal, however, the mother should appreciate that she should not make firm plans to move to [the Eastern states] until the outcome of any stay application has been determined. I can foreshadow, however, that it is likely that any stay order granted will be conditional upon the father prosecuting his appeal without delay. The father’s conduct towards the mother during the period any appeal is pending will also be an important consideration in determining whether any stay would be continued.
275 For the reasons above, and subject to hearing any submissions about the form of
the orders and about orders not previously the subject of submissions, I intend to make the following orders. So as to ensure that all ongoing orders are contained in the one document I propose to discharge all previous orders, save for the orders made in October 2009 requiring the mother, father and [Fiona] to attend various programs.
1. All previous parenting orders are discharged, save for paragraphs 2, 3 and 4 of the orders made on 16 October 2009.
2. The mother, [MS S] have sole parental responsibility for the child, [FIONA W], born [in] October 2005.
3. [Fiona] shall live with the mother.
4. The mother be at liberty to remove [Fiona] from Western Australia to reside in [the Eastern states], provided that such liberty shall not be exercised until:
(a) the time for the filing of an appeal against these orders has expired; and (b) the mother has complied with orders 2, 3 and 4 made on 16 October 2009. 5. The mother be restrained and an injunction is hereby granted restraining her from allowing [Fiona] to come into contact with [Mr I].
6. The father, [Mr W], be restrained and an injunction is hereby granted restraining him from:
(a) coming within one kilometre of: (i) the mother’s home;
(ii) the mother’s place of employment;
(iii) any child-care facility, kindergarten, school or other educational establishment attended by [Fiona].
7. The father be restrained and an injunction is hereby granted restraining him from contacting or communicating with:
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(a) the mother’s employer; (b) any child-care centre, kindergarten, school or other educational establishment attended by [Fiona]; (c) [Fiona’s] medical practitioner; (d) the mother’s associates or neighbours. 8. The father be restrained and an injunction is hereby granted restraining him from having [Fiona’s] hair cut or otherwise altering her appearance.
9. The mother shall provide to the father (and the Independent Children’s Lawyer if still appointed):
(a) a copy of any end of term/semester report provided in relation to [Fiona’s] progress at school (commencing in her pre-primary year), such report to be made available within seven days of the mother receiving same; (b) a brief annual report from a medical practitioner concerning [Fiona’s] health, such report to be provided on an annual basis; (c) the full name and date of birth of any adult male person with whom she shares accommodation or who regularly stays overnight in her home (save for relatives). 10. The father be at liberty to issue a subpoena to police and child protection authorities for the production of records relating to any person(s) referred to in paragraph 9(c) of these orders, such subpoena to be made returnable before a Registrar of the Family Court of Western Australia.
11. The father shall enrol in and complete an anger management program conducted by Anglicare, Relationships Australia or Centrecare and shall provide evidence of completion of that program to the Independent Children’s Lawyer within eight months.
12. The father shall enrol in and complete a Triple P parenting program through Ngala or the Department of Child Protection and shall provide evidence of completion of the program to the Independent Children’s Lawyer within eight months.
13. The mother and father shall communicate with each other on matters relating to [Fiona’s] welfare via email.
14. The mother and the father shall keep each other informed concerning their current address.
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15. The mother and the father be at liberty to request the other to attend for drug urinalysis testing on the following terms:
(a) such request be conveyed by email between 12.00 pm and 5.00 pm on a Monday; (b) if practicable the test be undertaken the following day or as soon thereafter as practicable; (c) the parent undergoing testing shall authorise the laboratory to release a copy of the test results to the other party (and to the Independent Children’s Lawyer if still appointed); (d) the request for testing shall not be made more often than twice per annum; (e) the cost of each test be borne by the party undergoing the test; (f) the operation of this order shall terminate in relation to each parent at the expiration of three years in the event that clear results are obtained on each test for that parent.
16. Pending the relocation of [Fiona] to [the Eastern states], the existing time sharing arrangements as contained in the orders of 28 March 2008 shall continue but the parties and the Independent Children’s Lawyer be at liberty to make application:
(a) for variation of those orders; and (b) for orders for handovers to occur at a supervised contact service. 17. The mother shall as soon as practicable advise the Court, the father and the Independent Children’s Lawyer of whether she intends to live in [the country town] or in [the capital city].
18. The father have liberty to apply for orders in relation to the time he shall spend with [Fiona] after she relocates to [the Eastern states] and the means by which he may communicate with her in [the Eastern states], such liberty to be exercised by filing and serving a Minute of Orders within 14 days of today. The Minute shall indicate whether different orders are sought depending on whether the mother elects to live in [the capital city] or [the country town].
19. The applications of both parties insofar as they relate to child support and the contravention application of the mother filed 3 April 2009 are hereby dismissed.
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Postscript
276 At the hearing on 22 June 2010 it was agreed that I be informed that [Mr I] had
recently been imprisoned for 15 months arising inter alia out of the threats he made in
2009 against the mother, the father and [Fiona].
I certify that the preceding [276] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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